Citation Nr: 1309635 Decision Date: 03/21/13 Archive Date: 04/01/13 DOCKET NO. 09-31 245 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Entitlement to service connection for a psychiatric disability, including posttraumatic stress disorder (PTSD). 2. Entitlement to service connection for a right knee disability. 3. Entitlement to service connection for a left knee disability. 4. Entitlement to service connection for a right wrist disability. 5. Entitlement to an initial higher rating for degenerative disc disease of the lumbar spine, rated as 20 percent disabling prior to September 25, 2008, and as 40 percent disabling therefrom. 6. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities. ATTORNEY FOR THE BOARD Emily L. Tamlyn, Counsel INTRODUCTION The Veteran had active service from September 1978 to May 1985 and from August 1985 to September 1999. These issues come before the Board of Veterans' Appeals (Board) on appeal from several rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia. In June 2008, the RO granted a claim for service connection for degenerative disc disease of the lumbar spine and assigned a 10 percent rating (effective May 16, 2007, the date of the claim). Also, as pertinent to the present appeal, the RO denied claims for service connection for PTSD with major depressive disorder; a bilateral knee disability; and a right wrist disability. The Veteran filed a notice of disagreement with denials for claims for service connection and with the assigned disability rating of the service-connected back disability. In December 2008, the RO denied entitlement to a TDIU; a notice of disagreement was inferred. All issues were properly appealed. In October 2012, the Board remanded this claim for a hearing. In January 2013, the Veteran withdrew her hearing request. The issue of bladder incontinence has been raised by a March 2011 VA record as a claim for a separate evaluation secondary to service-connected status-post total vaginal hysterectomy. This issue has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. The claim for service connection for a psychiatric disability and the claim for entitlement to a TDIU are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. The competent and credible evidence of record does not show that a bilateral knee disability is related to military service. 2. The competent and credible evidence of record does not show a present right wrist disability that is related to military service. 3. Prior to September 25, 2008, the Veteran's lumbar flexion was to at least 60 degrees; there was no showing of ankylosis or incapacitating episodes. 4. Since September 25, 2008, there has been no showing of ankylosis of the spine, nor have there been any incapacitating episodes. CONCLUSIONS OF LAW 1. A bilateral knee disability was not incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1112, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. § 3.303 (2012). 2. A right wrist disability was not incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1112, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. § 3.303 (2012). 3. Prior to September 25, 2008, the criteria for a rating in excess of 20 percent for degenerative disc disease of the lumbar spine have not been met. 38 U.S.C.A. §§ 1155, 5107(b) (West 2002); 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.7, 4.71a, Diagnostic Code (DC) 5235-43 (2012). 4. From September 25, 2008, the criteria for a rating in excess of 40 percent for degenerative disc disease of the lumbar spine have not been met. 38 U.S.C.A. §§ 1155, 5107(b) (West 2002); 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.7, 4.71a, DC 5235-43 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VCAA As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). Proper notice from VA must inform the claimant of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In addition, the notice requirements of the VCAA apply to all elements of a service-connection claim, including the degree of disability and the effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. VCAA notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). Where complete notice is not timely accomplished, such error may be cured by issuance of a fully compliant notice, followed by readjudication of the claim. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). The Veteran's initial increased rating claim arises from an appeal of the initial evaluation following the grant of service connection. Courts have held that once service connection is granted the claim is substantiated, and additional notice is not required as any defect in the notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). No further notice is needed under VCAA for the initial increased rating claim for degenerative disc disease of the lumbar spine. Here, the Veteran was sent letters in August 2007 and August 2008 that provided information as to what evidence was required to substantiate the claims for service connection and of the division of responsibilities between VA and a claimant in developing an appeal. The letters also explained what type of information and evidence was needed to establish a disability rating and effective date. Hence, no further development is required with respect to the duty to notify. Next, VA has a duty to assist the Veteran in the development of the claims. This duty includes assisting the Veteran in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). The claims file contains the Veteran's service treatment records, as well as post-service reports of VA and private treatment and examination. The Board finds each pertinent VA examination and opinion to be fully adequate and explanatory. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Social Security Administration (SSA) records are in the file. Moreover, the Veteran's statements in support of the claim are of record. The Board has carefully reviewed such statements and concludes that no available outstanding evidence has been identified. The Board has also perused the medical records for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to the claims. For the above reasons, no further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). Service connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military, naval or air service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303(a) (2012). Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table); see also Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303. Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden/Caluza element is through a demonstration of continuity of symptomatology if the disability claimed qualifies as a chronic disease; such diseases are listed in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, ___ F.3d ___, No. 2011-7184, 2013 WL 628429 (Fed. Cir. Feb. 21, 2013). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Id.; see also Hickson, 12 Vet. App. at 253 (lay evidence of in-service incurrence sufficient in some circumstances for purposes of establishing service connection); 38 C.F.R. § 3.303(b). Where a veteran served continuously for ninety (90) days or more during a period of war and a chronic disease such as arthritis, becomes manifest to a degree of 10 percent within one year from date of termination of such service, such disease shall be presumed to have been incurred in or aggravated by service, even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2012). Arthritis qualifies as a chronic disability where a demonstration of continuity of symptomatology may establish in-service incurrence and a medical nexus under Walker because it is listed in 38 C.F.R. § 3.309(a). In evaluating the claim, the Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The evaluation of evidence generally involves a three step inquiry. First, the Board must determine whether the evidence comes from a "competent" source. The Board must then determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). The third step of this inquiry requires the Board to weigh the probative value of the proffered evidence in light of the entirety of the record. Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159. Lay evidence may be competent and sufficient to establish a diagnosis of a condition when: (1) a layperson is competent to identify the medical condition (i.e., when the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer); (2) the layperson is reporting a contemporaneous medical diagnosis, or; (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007); see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009) (a medical opinion was not required to prove a nexus between a service-connected mental disorder and drowning which caused death). In ascertaining the competency of lay evidence, the Courts historically had held that a layperson is not capable of opining on matters requiring medical knowledge. Routen v. Brown, 10 Vet. App. 183 (1997). However, in certain instances, lay evidence has been found to be competent with regard to a disease with "unique and readily identifiable features" that is "capable of lay observation." See, e.g., Barr, 21 Vet. App. 303 (concerning varicose veins); see also Jandreau, 492 F. 3d 1372 (a dislocated shoulder); Charles v. Principi, 16 Vet. App. 370 (2002) (tinnitus); Falzone v. Brown, 8 Vet. App. 398 (1995) (flatfeet). Laypersons have generally been found to not be competent to provide evidence in more complex medical situations. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (concerning rheumatic fever). After determining the competency and credibility of evidence, the Board must then weigh its probative value. In this function, the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza, 7 Vet. App. at 511-512; Madden v. Gober, 125 F.3d 1447 (Fed Cir. 1997) (holding that the Board has the "authority to discount the weight and probative value of evidence in light of its inherent characteristics in its relationship to other items of evidence"). Here, the Board finds there have been several diagnoses regarding a current knee disability, but no confirmed diagnosis of arthritis. A June 2007 S.M.B.J. record stated an examination of the knees was negative; X-rays were negative for arthritis and the impression was knee strain. She was continued on medication, advised to lose weight and to do walking or swimming exercises. A September 2008 Social Security Assessment (SSA) residual functional capacity assessment showed a primary diagnosis of chronic knee strain; allegations were only partially credible and not totally supported. There were past X-ray findings of no arthritis. Although some January 2009 private records showed an impression of degeneration, arthralgia and inflammation of the knee joints, an April 2009 X-ray was negative. Similarly, although one August 2011 private record raised the possibility of osteoarthritis of the knees, the May 2012 X-ray was negative. At the May 2012 VA examination, the examiner diagnosed bilateral patellofemoral syndrome. The Veteran reported that her knee problems began in the 1980s with exercise and she was diagnosed with arthritis in 2011. There was no objective evidence of painful motion. As noted above, x-rays taken in conjunction with the examination did not document arthritis. Following the examination, the examiner concluded that the claimed disability was less likely than not related to service because the medical records were silent for knee conditions and because there was symmetric involvement demonstrated on the X-rays suggesting a genetic component to pathology. As a result, knee disorders were less likely as not related to military service. The Board finds that while there is a current disability of bilateral patellofemoral syndrome and the Veteran asserted that her knees hurt in service, the weight of the evidence shows there is no nexus between the claimed in-service complaints and the present disability. Shedden, 381 F.3d 1163, 1167. To the extent the Veteran asserts continuity of symptomatology, the Board finds that there is no diagnosis of arthritis. See Walker v. Shinseki, 2013 WL 628429. Thus, as the disorder in question is not a chronic disease under 38 C.F.R. § 3.309(a), later manifestations after service, however remote, are not deemed to be service-connected under 38 C.F.R. § 3.303(b), as would be the case if a chronic disease was at issue. Thus lay evidence alone cannot enable an award of service connection here. Service connection could still be awarded, of course, if the record contains medical nexus evidence linking the current arthritis to service. Indeed, 38 C.F.R. § 3.303(d) holds that service connection may be granted for any disease diagnosed after discharge when all the evidence establishes that the disease was incurred in service. The claims file lacks a medical opinion in support of a grant in this case. Rather, the VA examiner in May 2012 opined that the symmetric involvement demonstrated on the x-rays suggesting a genetic component to pathology and also found that the lack of complaints for knee pain while in service weighed against a finding that the current patellofemoral syndrome was related to service. The Board finds the VA opinion is fully adequate and articulate on the issue. In determining the probative weight, a medical opinion will be considered more probative if it includes clear conclusions and supporting data with a reasoned analysis connecting the data and conclusions. See Nieves-Rodriguez, 22 Vet. App. 295. As noted above, the examiner based the negative opinion in part on a lack of in-service complaints. In this regard, an April 1999 report of medical examination (RME) showed a chronic history of periodically recurring bilateral knee pain, with an increase with running, without specific injuries or traumas. Each category of her physical profile was a "1", but on the report of medical history she noted swollen or painful joints and "trick" or locked knee; an attached standard form 507 showed bilateral knee pain. An April 1999 report of medical assessment showed the Veteran's report of pain in both knees. Examinations prior to April 1999 showed normal knee findings, with no complaints. At separation, a physical examination was negative. Thus, although knee complaints are referenced in April 1999, the overall in-service history is largely free of complaints. Accordingly, it cannot be found that the May 2012 VA examiner issued an opinion based on an inaccurate understanding of the record. In other words, the factual predicate articulated by the examiner is essentially consistent with the in-service records and the failure to mention the April 1999 findings does not invalidate the opinion. It slightly lessens its probative value but even so, it remains the strongest evidence of record on the question of nexus. Moreover, no other medical evidence refutes the May 2012 examiner's findings. In sum, the Board finds that service connection is not warranted for a bilateral knee disability. It is not warranted on a direct basis because there is no nexus to service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(d). The presumption similarly does not apply because no arthritis is shown. Walker v. Shinseki, 2013 WL 628429; 38 U.S.C.A. § 1112; 38 C.F.R. §§ 3.307, 3.309. Regarding the claim for service connection for a right wrist disability, the Board finds that the Veteran does not have a current disability, as will be discussed below. Notes accompanying a February 1994 X-ray report in service show complaints that the dorsum of the right hand was painful and swollen with no known history of trauma; the findings were negative. An accompanying service treatment record noted that three days prior, the dorsum of the right hand became painful, swollen and red with no history of trauma or insect bite. Findings were otherwise normal. The assessment was to rule out infection and arthritis. An April 1999 RME showed that upper extremities were abnormal. There was full range of motion of the right wrist, but there was pain with movement, especially with palmar flexion or the right dominant wrist. There was no swelling. Under the summary of defects, right wrist pain was noted. The report of medical history (RMH) noted swollen or painful joints; an attached standard form 507 showed right wrist pain. Post-service, a June 2007 record written by S.M.B.J. record showed the Veteran complained of wrist pain but had no swelling or injuries. Medication helped when she had pain. Physical examination of the wrist was negative; she had no swelling or pain that day. The range of motion of the wrist was full with no tenderness. An X-ray was negative for arthritis. There was some widening of the space between the scapholunate joint at the wrist, but she had no tenderness or swelling. The impression was wrist strain. However, a September 2008 VA neurological examination of the upper extremities was normal. A September 2008 SSA residual functional capacity assessment showed a diagnosis of wrist strain, noting past X-ray findings of widening of scapholunate space with no arthritis. However, the allegations were considered only partially credible and the alleged severity of limitations was not supported. Further, although a January 2009 private record noted right wrist pain and an impression of degeneration or other arthritic changes, an April 2009 X-ray of the right wrist showed a negative study. Upon VA examination in May 2012, the Veteran stated that a right wrist condition started in the 1980s, though she unsure of the exact onset. She noted that there was no formal diagnosis for her problem. Range of motion was normal on examination, with no evidence of painful motion. Other findings were also normal. The examiner noted that arthritis was not demonstrated by imaging (See May 2012 X-rays). In May 2012, the examiner stated that the claimed disability was less likely than not related to service because there was no pathology to render a diagnosis to relate to service. The Veteran is competent to relate that she had right wrist pain that started in the military and worsened over the years. 38 C.F.R. § 3.159. In May 2007, her sisters stated when the Veteran returned home from service she constantly complained of wrist pain; they are also competent to report what they observed about the Veteran. Id. However, such evidence does not in this case establish a diagnosis of a wrist disability. Indeed, while competent to report pain or observations thereof, the laypersons have not been shown competent to identify a medical condition. Moreover, they are not reporting a contemporaneous medical diagnosis, and their statements do not support a later diagnosis by a medical professional. See Jandreau. Rather, despite various instances of treatment, no definitive diagnosis has been rendered and x-rays and other studies have been consistently negative. Again, as a chronic disability of the right wrist has not been established over any portion of the rating period on appeal, a grant of service connection is not warranted. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). In reaching this conclusion the Board has considered the applicability of the benefit-of-the-doubt doctrine but the preponderance of the evidence is against the claim and that doctrine is not applicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. Initial increased ratings In evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. §§ 4.1 and 4.2 (2012). Also, the entire rating period is considered for the possibility of staged ratings. Consideration will be given to the possibility of separate ratings for separate periods of time based on the facts found. Hart v. Mansfield, 21 Vet. App. 505, 509-510 (2007). Disability evaluations are determined by the application of a schedule of ratings which is based, as far as can practicably be determined, on the average impairment of earning capacity. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.1 (2012). Each service-connected disability is rated on the basis of specific criteria identified by diagnostic codes (DCs). 38 C.F.R. § 4.27 (2012). For exceptional cases, an extraschedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities may be awarded. 38 C.F.R. § 3.321 (b)(1) (2012). In Thun v. Peake, 22 Vet. App. 111 (2011), the Court clarified the analytical steps necessary to determine whether referral for extraschedular consideration is warranted. Either the RO or the Board must first determine whether the schedular rating criteria reasonably describe a veteran's disability level and symptomatology. Id. at 115. If the schedular rating criteria do reasonably describe a veteran's disability level and symptomatology, the assigned schedular evaluation is adequate, referral for extraschedular consideration is not required, and the analysis stops. Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance. It is essential that the examination upon which ratings are based adequately portray the anatomical damage, and the functional loss, with respect to all these elements. The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. A little used part of the musculoskeletal system may be expected to show evidence of disuse, either through atrophy, the condition of the skin, absence of normal callosity or the like. 38 C.F.R. § 4.40 (2012). Evidence of pain, weakened movement, excess fatigability, or incoordination must be considered in determining the level of associated functional loss in light of 38 C.F.R. § 4.40, taking into account any part of the musculoskeletal system that becomes painful on use. DeLuca v. Brown, 8 Vet. App. 202 (1995). The provisions of 38 C.F.R. § 4.14 (avoidance of pyramiding) do not forbid consideration of a higher rating based on greater limitation of motion due to pain on use, including flare ups. 38 C.F.R. § 4.14 (2012). The provisions of 38 C.F.R. § 4.40 and 38 C.F.R. § 4.45, however, should only be considered in conjunction with the diagnostic codes predicated on limitation of motion. Johnson v. Brown, 9 Vet. App. 7, 11 (1996). Also, functional loss due to pain must be supported by pathology and shown through objective observation. Johnston v. Brown, 10 Vet. App. 80, 84-85 (1997) (citing 38 C.F.R. § 4.40). Pain alone does not constitute functional loss under VA regulations that evaluate disabilities based upon loss of motion. Mitchell v. Shinseki, 25 Vet. App. 32, 38 (2011). The intent of the rating schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. It is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59 (2012). With respect to the joints, the factors of disability reside in reductions of their normal excursion of movements in different planes. Inquiry will be directed to these considerations: (a) less movement than normal (due to ankylosis, limitation or blocking, adhesions, tendon-tie-up, contracted scars, etc.); (b) more movement than normal (from flail joint, resections, nonunion of fracture, relaxation of ligaments, etc.); (c) weakened movement (due to muscle injury, disease or injury of peripheral nerves, divided or lengthened tendons, etc.); (d) excess fatigability; (e) incoordination, impaired ability to execute skilled movements smoothly; and (f) pain on movement, swelling, deformity or atrophy of disuse. Instability of station, disturbance of locomotion, interference with sitting, standing and weight-bearing are related considerations. 38 C.F.R. § 4.45 (2012). The Board must evaluate disabilities under multiple diagnostic codes to determine if there is any basis to increase the assigned rating. Such evaluations involve consideration of the level of impairment of a veteran's ability to engage in ordinary activities, to include employment, as well as an assessment of the effect of pain on those activities. 38 C.F.R. §§ 4.10, 4.40, 4.45, 4.59 (2012). The General Rating Formula for Diseases and Injuries of the Spine for DCs 5235-5243 provides for the rating of disabilities of the spine. With or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease, the relevant parts of the formula are as follows: Unfavorable ankylosis of the entire spine (100 percent); Unfavorable ankylosis of the entire thoracolumbar spine (50 percent); Forward flexion of the thoracolumbar spine to 30 degrees or less, or with favorable ankylosis of the entire thoracolumbar spine (40 percent); and Forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees or the combined range of motion of the thoracolumbar spine not greater than 120 degrees or muscle spasm or guarding severe enough to result in an abnormal gaiter abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis (20 percent). 38 C.F.R. § 4.71a (2012). Normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. 38 C.F.R. § 4.71a, Note (2). Intervertebral Disc Syndrome (IVDS) is evaluated either under the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, whichever method results in the higher evaluation when all disabilities are combined under § 4.25. 38 C.F.R. § 4.71a, DC 5243 (2012). Note (1) of 38 C.F.R. § 4.71a, DC 5243 states that an "incapacitating episode" is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. The Board finds that at no point has the Veteran been prescribed bed rest by a physician during the rating period on appeal for a period of time that would warrant an increased rating; that is incapacitating episodes having a total duration of at least four weeks during the past twelve months which would warrant a 40 percent rating. 38 C.F.R. § 4.71a, DC 5243. As a result, the disability should be rated under the General Formula. Id. Degenerative arthritis of the spine (DC 5242) is rated under DC 5003, which addresses degenerative arthritis generally. Degenerative arthritis established by X-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. 38 C.F.R. § 4.71a, DC 5003 (2012). Note 1 of DC 5003 states that the degenerative arthritis ratings will not be combined with ratings based on limitation of motion. As the Veteran receives the higher rating from the limitation of motion code, she is rated under the General Rating Formula for Diseases and Injuries of the Spine. Additionally, in July 2012, the RO granted separate ratings for radiculopathy of the bilateral lower extremities at 30 percent (left) and 20 percent (right) disabling from January 30, 2012. The Veteran has not disagreed with this assignment of ratings and the Board finds this issue is not on appeal at this time. Prior to September 25, 2008 During the period in question, from May 16, 2007, to September 25, 2008, the Veteran is in receipt of a 20 percent rating under DC 5242 for degenerative arthritis of the spine. Based on all available evidence for this applicable period, the Board does not find that an increased rating is warranted. As will be discussed below, at no point does the evidence show any ankylosis or forward flexion of 30 degrees or less. Indeed, there are no significant objective findings supporting pathology of pain to award an increase. The rating assignment currently in effect appropriately reflects the Veteran's disability picture throughout the rating period on appeal. In June 2007, the Veteran visited Dr. S.M.B.J. and complained of low back pain. She was taking pain medication. She had tenderness in the lumbar region and was able to flex up to 60 degrees without pain. Side bending was 20 degrees each way with pain beyond. Other physical findings were negative. X-rays showed degenerative disc disease and minimal degenerative changes. The Board finds that for the period in question the evidence does not show forward flexion of the thoracolumbar spine to 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine. The Board has considered DeLuca, 8 Vet. App. 202, but finds no lack of weakened movement, excess fatigability, or incoordination to award an increase on that basis. The lay evidence has also been considered, but such evidence does not establish ankylosis or forward flexion to 30 degrees or less. Where the evidence contains factual findings that show a change in the severity of symptoms during the course of the rating period on appeal, assignment of staged ratings would be permissible. See Hart, 21 Vet. App. at 509-510. However, the record does not support the assignment of different percentage evaluations during the time period on appeal. In this case, no staged rating is warranted. Since September 25, 2008 For this time period, the Veteran has been rated at 40 percent under DC 5242 for degenerative arthritis of the spine. Based on all available evidence for this applicable period, an increased rating is not warranted because no ankylosis has been shown and no bed rest prescribed by a physician. In September 2008, the Veteran had a VA examination for her degenerative disc disease of the lumbar spine. She had stiffness, numbness and spasms. Pain was brought on by stress and physical activity. It was relieved by pain medication and physical therapy. She had no incapacitation. She stated she was unable to function some days due to back pain; when she took medication the effect from the medicine caused her to feel "cloudy" or hazy. When she took less medicine, she was clearer, but the pain was still there. (While the examiner also noted loss of bladder control, other records, including a March 2011 record, appear to show that it is related to her service-connected status-post total vaginal hysterectomy and this issue has been referred for further development.) Physical examination revealed normal posture and gait. She had no muscle spasm, tenderness in the lower lumbar area and no ankylosis. Range of motion is indicated below. Forward flexion 0-15 Degrees Extension 0-10 Degrees Right lateral flexion 0-10 Degrees Left lateral flexion 0-10 Degrees Right lateral rotation 0 Degrees Left lateral rotation 0 Degrees The spine was limited by pain with repetitive use. There was no additional limitation of motion in degree and no fatigue, weakness, incoordination or lack of endurance. There was no IVDS. A neurological examination was normal. Physical activity was not recommended for employment; sedentary activities were recommended. She had difficulty with prolonged sitting, standing and walking. The Veteran received private chiropractic care throughout this time period. A December 2008 record noted that upon all attempts for lumbar range of motion, the Veteran expressed pain and significant reduction in normal range of motion. In January 2009, a record noted "intervertebral disc disorder" and lumbar "VSC." The chiropractor also noted lumbar subluxation, a gait abnormality, and motor weakness in other records from that month. A back X-ray showed intervertebral osteochondrosis at L2-L5. On a pain questionnaire dated in March 2009, the chiropractor stated that pain was moderate but prevented her from sitting for more than one hour or standing for more than a half hour. It restricted her social life and caused her to lose sleep. It was improving, but slowly. In March 2012, a VA examination report showed the Veteran complained of back spasms and severe pain that caused her to be unable to move. When the flare ups were intense, she would take medication and go to sleep. Forward flexion 20 Degrees Extension 10 Degrees Right lateral flexion 10 Degrees Left lateral flexion 15 Degrees Right lateral rotation 10 Degrees Left lateral rotation 10 Degrees The Veteran was able to perform repetitive use testing with three repetitions with no additional limitation of range of motion except left lateral flexion was limited to only 10 degrees. Functional loss included less movement than normal, excess fatigue, and pain on movement. She had tenderness to palpation. Guarding and/or muscle spasm was present, but did not result in abnormal gait or spinal contour. Muscle strength testing was slightly reduced. There was no atrophy and a sensory examination was normal. Reflexes were hypoactive. There was no IVDS but she did have a brace. X-rays showed no evidence of fracture or subluxation. Mild multilevel degenerative disc disease and multilevel degenerative joint disease were diagnosed. The Veteran was limited in her ability to do physical work such as moderate to heavy lifting, frequent standing and walking but was capable of doing sedentary work with ability to sit and stand as needed or desired. In May 2012, the Veteran underwent another VA spine examination. She stated that flare ups caused her severe pain. Range of motion was as follows. Forward flexion 90 Degrees Extension 30 Degrees Right lateral flexion 30 Degrees Left lateral flexion 30 Degrees Right lateral rotation 30 Degrees Left lateral rotation 30 Degrees There was no objective evidence of pain on motion. Repetitive use testing with three repetitions produced no additional limitation of range of motion. There was no functional loss or impairment of the spine. There was no tenderness to palpation, guarding, muscle spasm, or atrophy. Muscle strength, sensory and reflex testing was normal. Straight leg testing was normal. There were no other neurologic abnormalities and there was no IVDS of the spine. The Veteran did not use an assistive device. The spine did not impact the Veteran's ability to work. Regarding DeLuca, 8 Vet. App. 202, the Board finds there is an overall a lack of weakened movement, excess fatigability, atrophy and incoordination to award an increase on that basis. In August 2009, the Veteran had stated that her current 40 percent rating did not consider functional loss. However, the Board finds that this rating does consider functional loss because the limitation of motion is part of the function of the joint and that is a consideration in rating the disability. The Board acknowledges that the examiner in this case did not expressly identify, in degrees of lost motion, any additional functional loss during periods of flare-up. However, given that the next-higher evaluation is not predicated on a higher degree of lost motion, but rather on ankylosis (fusion of the joint), such information would not have enabled a higher evaluation here. As such, the absence of such finding in the examination report does not prejudice the Veteran here. Again, the Board finds that further staged ratings are not warranted for this time period on appeal. See Hart, 21 Vet. App. at 509-510. If anything the last VA examination shows improvement and not a worsening of the disability. The schedular rating criteria do reasonably describe the Veteran's disability level and symptomatology; her complaints of back symptoms are already included in the currently assigned rating. The assigned schedular evaluation is adequate. Thun, 22 Vet. App. at 115. Regarding the issue of TDIU and Rice v. Shinseki, 22 Vet. App. 447 (2009) (a claim for a TDIU is part of an increased rating claim when such claim is expressly raised by the Veteran or reasonably raised by the record), the Board is severing this issue and remanding it for further development, as explained below. ORDER Service connection for a right knee disability is denied. Service connection for a left knee disability is denied. Service connection for a right wrist disability is denied. Prior to September 25, 2008, entitlement to an initial higher rating for degenerative disc disease of the lumbar spine in excess of 20 percent disabling is denied. Since September 25, 2008, entitlement to an initial higher rating for degenerative disc disease of the lumbar spine in excess of 40 percent disabling is denied. REMAND For service connection for a psychiatric disability, to include PTSD, the Board finds that further development is warranted. The Veteran has alleged in her May 2007 claim that she had "emotional problems with womanhood" after her hysterectomy. She also had recurring emotional problems after observing a fellow soldier's death in an accident. Additionally, she asserts that she was sexually harassed in service. The Veteran is now service-connected for a status-post vaginal hysterectomy (See July 2012 RO decision). On remand, the Veteran should be issued secondary service-connection notice with respect to her claim of service connection for a psychiatric disability due to service-connected status post vaginal hysterectomy. She should be notified of how to substantiate a claim for service connection when an already service-connected disability causes or aggravates a nonservice-connected disability. Also, while the Veteran stated that she witnessed the death of a soldier, no search has been completed in her unit records for such a death. In an August 2007 PTSD stressor form, the Veteran reported that between October and December 1980 in Katterbach, Germany, while in the HHC, 1st Armor Division from February 9, 1979 to January 31, 1981, she saw the body of a fellow soldier after he had been killed. The soldier was laying and working under a truck when another soldier got in the vehicle and moved it, backing up over the first soldier. The Veteran was disturbed by the sight of the body and ran to the barracks in shock. She could not remember the name of the soldier who was killed. The AMC should research unit records in order to try to verify this in-service event. The Board finds that the Veteran appears to be credible in her reports of sexual harassment in the military (see August 2007 PTSD personal assault stressor form). While SSA found some possible abnormalities (exaggerating, a lower than normal IQ score) in psychological testing, the Board finds the Veteran to have been relatively credible in her report of what happened in service. Accordingly, the duty to provide a VA examination to determine the nature and etiology of any psychiatric disability has been triggered. Finally, as the Veteran has alleged TDIU as to all of her service-connected disabilities, she should receive a VA examination to determine her employability. Accordingly, the case is REMANDED for the following action: 1. First, provide the Veteran with a notice letter that informs her of proper secondary service connection notice for her claim for service connection for a psychiatric disability as secondary to her status post vaginal hysterectomy. Notify the Veteran of how to substantiate a claim for service connection when an already service-connected disability causes or aggravates a nonservice-connected disability. 2. Next, request information about the Veteran's reported stressor event (see August 2007 PTSD stressor form noted above) from the appropriate repository. A response should be documented in the file. 3. After completing all of the development action requested above, schedule the Veteran for a VA psychiatric examination. The claims folder and a copy of this remand must be provided to the examiner prior to the examination. The examiner should determine the diagnoses of any currently manifested psychiatric disorder(s) and should state whether it is at least as likely as not that any diagnosed psychiatric disability is related to service. The diagnosis must be based on examination findings, all available medical records, complete review of comprehensive testing for PTSD, and any special testing deemed appropriate. A multiaxial evaluation based on the current DSM-IV diagnostic criteria is requested. The examiner's attention is especially directed toward the following evidence: * An April 1995 medical in-processing form noting that stress management resources were provided; * An April 1999 RME and RMH showing that the Veteran was psychiatrically normal and that she denied frequent trouble sleeping, depression or excessive worry or nervous trouble of any sort; * The August 2007 stressor forms mentioned above; * March 2008 SSA psychological testing noting diagnoses of chronic PTSD, major depressive disorder, panic disorder without agoraphobia, and rule out malingering; * December 2008 and January 2009 private records noting a prescription for anxiety; and * December 2011 VA record showing a diagnosis of depression. If the examiner does not diagnose PTSD, but there is a diagnosis of another psychiatric disability, the examiner should opine as to whether the psychiatric disability had its clinical onset in service. If PTSD is diagnosed, the specific stressor event upon which the diagnosis is predicated should be identified. The examiner should explain all conclusions made and support them with an accurate citation to the pertinent facts of the case. 4. Finally, after completing all above development, schedule the Veteran for a VA examination to determine whether she is unable to obtain or retain employment as a result of her service-connected disabilities. The claims file and a copy of this remand should be made available to the examiner and the report should state that both were reviewed. The examiner should comment on any symptomatology shown to be present and due to the service-connected disabilities. A statement of the Veteran's current service-connected disabilities should be sent with the examination request. The examiner should opine as to whether, without regard to the Veteran's age or impact of any nonservice-connected disability, the Veteran's service-connected disabilities renders her unable to secure or follow a substantially gainful occupation. A complete rationale for any opinion expressed and conclusion reached should be set forth in a legible report. 5. Re-adjudicate the claim for service connection for a psychiatric disability and entitlement to a TDIU. If the decision remains in any way adverse to the Veteran, provide him with a supplemental statement of the case (SSOC). The SSOC should reflect that all service treatment records have been reviewed. The SSOC must contain notice of all relevant actions taken on the claims for benefits, to include the applicable law and regulations considered pertinent to the issue remaining on appeal as well as a summary of the evidence of record. An appropriate period of time should be allowed for response. The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ ERIC S. LEBOFF Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs